From the Archives: Policy analyst James Gattuso discusses problems with Net Neutrality – Part II

Policy analyst James Gattuso discusses problems with Net Neutrality – Part II
January 24, 2011 12:15 AM MST

In a January 11 interview with the Charlottesville Libertarian Examiner, James Gattuso – who is a senior research fellow in regulatory studies at the Heritage Foundation in Washington, where he focuses on communication policy – spoke about the Federal Communications Commission’s recent ruling on so-called “Net Neutrality.”

Gattuso argued that the new rules were at odds with efficient economic operation of the Internet and also that they were based on “flawed” claims of legal authority by the FCC.

He also predicted that Congress will take action to reverse the FCC's ruling.


Congressional Review Act
One avenue will be the Congressional Review Act, which was passed in 1996 and allows Congress to overrule executive branch regulations.

Another possibility, Gattuso said, is “standalone legislation to reverse the FCC’s decision and strip them of authority to act in the future.”

This could face a hurdle, however, because Net Neutrality rules have “been a priority item for president Obama and he can veto any such standalone bill.”

He suggested that a “much more potentially winning strategy is going to be the funding approach, where they will put on an appropriations rider prohibiting the FCC from using any funds to enforce this rule.”


Threat to the First Amendment

James Gattuso (c) 2011 Rick Sincere

Finally, Gattuso expressed his concerns that the FCC’s new rules could have negative implications for freedom of expression now protected by the First Amendment.

“The rules as written by the FCC ban ‘unreasonable discrimination,’” he said. “They use the word ‘reasonable’ quite a bit in the rules, which ultimately means the FCC will have discretion to decide how content can be treated on the web, what can be given priority, and what must be given priority.”

This means, he added, that “whenever a company has a plan for treating one group of content different from another or even treating it the same as another, the FCC can say ‘yes’ or ‘no.’”

That will put the FCC “inevitably into the business of deciding what speech is valuable, what speech is important, and which speech is favored.”

That, Gattuso concluded ominously, is “a dangerous path.”

Publisher's note: This article was originally published on Examiner.com on January 24, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.